Is his removal in the cards?

January 27, 2009|By Michael L. Mezey, political science professor at DePaul University

With Illinois immersed in the impeachment of Gov. Rod Blagojevich, the question on everyone's mind is what constitutes grounds for impeachment and removal. The answer is difficult, because the impeachment provision of the Illinois Constitution contains no specifics. However, the history of the term "impeachment," along with the words of the U.S. Constitution, as they pertain to judges, presidents and other federal officeholders, can provide guidance.

Impeachment was developed in Great Britain and adopted in the U.S. as a way to hold judges and government officials accountable for actions that normally were beyond the reach of the criminal justice system. When a minister of the king acted in a corrupt manner, he might be protected by the king from criminal prosecution, but impeachment provided the parliament with a way to remove him from office. As the practice developed, a distinction was drawn between impeachment and criminal conduct; impeachment was not a judgment that the impeached official had committed a criminal act and, conversely, it was not necessary for an official to have committed a criminal act for him to be impeached.

The U.S. Constitution makes this clear when it established the grounds for impeachment of federal officeholders as "treason, bribery or other high crimes and misdemeanors."

The key term is "misdemeanor." In our current parlance, misdemeanor refers to a petty crime, such as disturbing the peace or littering. Certainly, the founders did not intend that a president or a judge could be impeached and removed from office for tossing a scrap of paper on the street.

The more appropriate interpretation of misdemeanor in the context of impeachment is misconduct, but that too can refer to a trivial act. Cheating on one's spouse is misconduct, but most would agree that it does not merit removal from office.

The type of misconduct that is impeachable is "high crime," which is, quite simply, a crime against the state. Murder is not a crime against the state; it is a crime against an individual. Treason and bribery are crimes against the state, crimes an officeholder commits in his public capacity, crimes in which the polity itself is a victim. Similarly, high misdemeanors refer to misconduct against the state. When a public official knowingly lies about a public issue, he has committed an impeachable offense, even though it might be difficult to convict that person of a crime in a court of law. Or when an official discusses soliciting a bribe for a public act but does not actually solicit a bribe, that, too, is impeachable conduct though it is not likely to be criminal conduct.

All this suggests that the search for clear standards for impeachment is a fool's errand. Impeachment was designed to be a political rather than a legal decision, which is why the specific standards in criminal law do not appear in the constitutional provisions for impeachment.

Clearly, it was not an act to be taken simply because one disagreed with the policies or decisions of an officeholder. Rather, it is a political act in the sense that the legislature needs to judge whether the officeholder has misbehaved in terms of his official responsibilities and whether that misbehavior is unjustifiable to the point that it warrants removal from office.

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Michael L. Mezey is a political science professor at DePaul University.